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ELCPartially AllowedNakuru HCCC No. 291 of 2009; Nakuru HCCC No. 197 of 2012; Nakuru ELC No. 231 of 2013 (Consolidated)· [2019] KEELC 3663 (KLR)

Patroba Jelagat Simotwo & 4 others v Phillister Auma Simba [2019] KEELC 3663 (KLR)

Environment and Land Court of Kenya
9 April 2019
5,252 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court cancelled titles created by a vendor's fraudulent subdivision and ordered the land resurveyed to match the ¼-acre plots buyers actually purchased.

What this practically means

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Executive summary

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This is a consolidated first-instance judgment of the Environment and Land Court at Nakuru in three suits: HCCC No. 291 of 2009 (Patroba Simotwo v Phillister Auma Simba), HCCC No. 197 of 2012 (Joseph Keya Makhulu v Phillister Auma Simba) and ELC No. 231 of 2013 (Ouma, Obambo, Achieng & Ngesa v Patroba). The dispute arose from a 3-acre parcel, Nakuru Municipality Block 14/395, allotted to Patroba after parallel allotment letters (held by Elijah Langat) had subdivided it into alphabetical plots A-L of about ¼ acre each. Purchasers who had bought plots from Langat entered fresh sale agreements with Patroba in 1997, the plots being described alphabetically. Instead of subdividing conformably, Patroba created 18 numerical plots of varying sizes, retained the surplus and resold Plot 713 to Makhulu while the first suit was pending. The court held that the parties intended to sell and buy the alphabetical ¼ acre plots; that Patroba's unilateral subdivision was fraudulent; that the purchasers had paid in full; and that Makhulu, buying land under litigation and occupation without inquiry, was not an innocent purchaser for value. Relying on section 143 of the (repealed) Registered Land Act, the court cancelled all titles held by Patroba and Makhulu over the affected parcels, ordered resurvey to conform to old plots D, F, G and H, and directed registration of new titles in the defendants' names. Patroba's and Makhulu's suits were dismissed; the counterclaims and the ELC 231/2013 plaintiffs' claim succeeded, with costs to the successful defendants.

Key legal issues

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01

Intention of the parties in the sale agreements

Holding

The parties intended to sell and buy the alphabetical plots A-L of about ¼ acre each as described in the parallel allotment letters, not resurveyed plots of varying size.

Reasoning

The sale agreements described the plots by alphabetical identity (A-L), matching the parallel allotment letters which had already carved the land into ¼ acre plots. Had the intention been different, the agreements would have said so and would have specified sizes. No provision existed for pro-rating plots to amounts paid; price and subject matter were fixed.

p. 4
02

Fraudulent subdivision

Holding

Patroba's subdivision of the land into 18 plots, behind the purchasers' backs and inconsistent with the plots sold, was fraudulent; the resulting titles are liable to cancellation.

Reasoning

Patroba subdivided the land without consulting the purchasers in occupation, carving plots smaller than ¼ acre for those who refused her demands for extra money and retaining the balance for herself. The court held the subdivision plan was a fraud aimed at short-changing the purchasers of the plots they had bought and paid for in full.

p. 4
03

Innocent purchaser for value

Holding

Makhulu was not an innocent purchaser for value because he bought the plot while litigation over it was pending, the plot was occupied, and he made no inquiries of the party in possession.

Reasoning

Makhulu purchased Plot 713 in September 2010 when the suit over it was pending. Phillister was in possession and putting up a fence. A prudent purchaser would have inquired of her. Being never in possession, he could not rely on the proviso in section 143(2) of the Registered Land Act. The sale was aimed at defrauding Phillister.

p. 4
04

Rectification of the register under section 143 of the Registered Land Act

Holding

The court ordered rectification by cancelling titles obtained by fraud, including the title of the non-protected purchaser.

Reasoning

Section 143(1) permits rectification where a registration was obtained by fraud or mistake; section 143(2) protects a proprietor in possession for valuable consideration without knowledge of the fraud. Since Makhulu was never in possession, he fell outside the protection, and Patroba's titles were themselves products of fraud.

p. 4
05

Payment of purchase price

Holding

The court found the defendants paid the full purchase price under all the sale agreements, rejecting Patroba's claims of outstanding balances, rates and survey fees.

Reasoning

Patroba could not state precisely what she was owed, referring vaguely to documents not in court. Rates and survey charges were also not claimable because the subdivision she undertook was not the one agreed under the sale agreements.

p. 4

Legal principles established

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  • A vendor who sells plots identified by an allotment letter/plan cannot unilaterally subdivide the land inconsistently with what was sold; such subdivision is fraudulent and titles founded on it are liable to cancellation.
  • A purchaser of land that is occupied and subject to pending litigation, who makes no inquiries of the person in possession, does not qualify as an innocent purchaser for value.

Court orders

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  1. 1.Titles of Patroba to parcels Nakuru Municipality Block 14/708, 709, 710, 711, 713, 714, 715, 716, 717, 718 and 719 cancelled
  2. 2.Title of Joseph Keya Makhulu to Nakuru Municipality Block 14/713 cancelled
  3. 3.Nakuru District Land Registrar and District Land Surveyor to resurvey the cancelled parcels and process new numbers conforming to the size and identity of old plots D, F, G and H
  4. 4.New parcels to be registered in the names of the defendants according to the plots they purchased (D, F, G and H)
  5. 5.Suits by Patroba (HCCC No. 291 of 2009) and Makhulu (HCCC No. 197 of 2012) dismissed
  6. 6.Counterclaim of Phillister and claim of plaintiffs in ELC No. 231 of 2013 allowed
  7. 7.Costs awarded against Patroba for suit 291 of 2009 (including counterclaim) and suit 231 of 2013; costs against Makhulu for suit 197 of 2012 (including counterclaim)

Authorities

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Legislation

  • Registered Land Act (Cap 300, now repealed)Section 143(1) and (2)
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (consolidated suits transferred from the High Court at Nakuru)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Patroba Jelagat Simotwo & 4 others v Phillister Auma Simba [2019] KEELC 3663 (KLR)", Case Analysis (2019). Nakuru HCCC No. 291 of 2009; Nakuru HCCC No. 197 of 2012; Nakuru ELC No. 231 of 2013 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3663/eng@2019-04-09

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.